United States v. Blanchard, Marshall

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 07-2780

U NITED S TATES OF A MERICA,

Plaintiff-Appellee,

v.

M ARSHALL L. B LANCHARD ,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Central District of Illinois.

No. 05 CR 20015—Michael P. McCuskey, Chief Judge.

____________

A RGUED A PRIL 3, 2008—D ECIDED S EPTEMBER 8, 2008

____________

Before F LAUM, M ANION, and T INDER, Circuit Judges.

T INDER, Circuit Judge. Marhsall Blanchard was tried and

convicted of one count of manufacturing methamphet-

amine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C),

and one count of unlawful possession of a firearm by a

convicted felon, in violation of 18 U.S.C. § 922(g)(1). He

challenges both convictions on a variety of grounds,

including the denial of his pretrial motions for a bill of

particulars and severance, the alleged constructive amend-

2 No. 07-2780

ment of the indictment, the sufficiency of the evidence,

and the introduction at trial of certain comments, orig-

inally made at a pretrial suppression hearing, by the

district court judge. Blanchard also challenges his sen-

tence, contending that the district court erroneously

applied certain enhancements in calculating the advisory

guidelines range. For the reasons set forth in this opinion,

we vacate Blanchard’s convictions and remand for a

new trial.

I. Background

The Defendant, Marshall Blanchard, owned two homes,

one in Roberts, Illinois, and the other in Paxton, Illinois.

The two towns are roughly 15 miles apart in east-central

Illinois. Blanchard acquired and moved into the Roberts

home no later than sometime during the year 2001, the

same year in which he separated from his ex-wife.

With the exception of a seven-month period during 2003,

Blanchard’s son, Marshall Jr.,1 lived with him at the

Roberts residence. In the fall of 2001, Marshall Jr. removed

several firearms—four rifles and two shotguns—from an

enclosed porch area of the Roberts residence and delivered

them to a family friend’s place of business for storage. He

later returned the same firearms to the porch area of the

Roberts residence, but more on that later.

1

Because the Defendant, Marshall Blanchard, and his son,

Marshall Blanchard Jr., share the same name (apart from the

“Jr.” designation), for the sake of clarity, we hereinafter refer

to the Defendant as “Blanchard” and to his son as “Marshall Jr.”

No. 07-2780 3

After moving out of the Roberts residence in Febru-

ary 2003, Marshall Jr. returned sometime in August 2003.

At that time, he was twenty years old and studying

criminal justice at a local college. During the summer of

2004, Marshall Jr. began using the porch area of the

Roberts residence as his bedroom. In order to enjoy

exclusive access to his bedroom, Marshall Jr. installed a

lock on the door leading to the porch area from the interior

of the house and kept the only key for himself. In October

or November of 2004, Marshall Jr. retrieved the aforemen-

tioned firearms from the family friend’s place of business

and returned them to the porch area at the Roberts resi-

dence. Those firearms remained in the porch area of the

Roberts residence throughout the remainder of 2004.

Meanwhile, during the late summer and fall of 2004,

Marshall Jr. began to notice peculiar physical and behav-

ioral changes in his father. He noticed that Blanchard lost

considerable weight, had blemishes and sores on his face,

did not sleep much, and seemed unusually agitated. In

addition, Blanchard regularly entertained visitors, some

of whom Marshall Jr. did not know; however, he did

know the most frequent visitor, Cynthia Blanding.

Blanding and Blanchard met in mid-October 2004. At

that time, Blanding was in the process of moving out of

her home, from which she had been evicted. Blanding and

Blanchard became romantically involved, and Blanchard

offered to let Blanding stay at the house in Paxton, which

she did on occasion. She also stayed overnight with

Blanchard on several occasions at the Roberts residence.

One day in the last week of December 2004, Marshall Jr.

was home alone at the Roberts residence. He noticed a

4 No. 07-2780

strong, ammonia-type smell coming from the sink; upon

inspection, he observed a strainer and some glass jars in

the sink. The following day, he arrived home early from

work and discovered two plastic bottles containing an “off-

white crystal” substance. He opened one of the bottles

and encountered a strong ammonia-type odor. Marshall Jr.

recalled information that he had learned about metham-

phetamine in his criminal justice studies; at this point,

putting the off-white substance together with his father’s

recent physical and behavioral changes, he suspected

that the substance was methamphetamine. Marshall Jr.

photographed the bottles with his digital camera and took

a spoon-sized sample of the off-white substance; he then

went to see his mother, Lori Blanchard. After discussing

his suspicions and concerns with her, Marshall Jr. left Lori

with the sample of the off-white substance and a disk

containing the photos from his digital camera. Lori then

contacted the Roberts chief of police, Randy Kinzinger, and

delivered these items to him. The off-white substance

tested positive for ephedrine, a commonly used ingredient

in the manufacture of methamphetamine.

Shortly thereafter, on December 30, 2004, law enforce-

ment officers executed search warrants at both the

Roberts and Paxton residences. At both residences, officers

seized items that, although innocuous when viewed

individually and in isolation, might nonetheless be used, as

a group, for methamphetamine manufacturing. At the

Paxton residence, for example, officers seized camp fuel

containers, a sulfuric acid container, filters, salt, a gas

mask, and pseudoephedrine packaging; cleaning officials

later encountered hazardous substances, including anhy-

No. 07-2780 5

drous ammonia, at that residence. And at the Roberts

residence, officers seized, among other things, numerous

coffee filters, an anhydrous ammonia tank, and a propane

tank. And not only was there “smoke,” but also “fire”;

officers seized 9.8 grams of a substance containing meth-

amphetamine from the Paxton residence and 69 grams of

a substance containing methamphetamine from the

Roberts residence. In addition, at the Roberts residence,

officers seized .01 grams of methamphetamine from the

nightstand in Blanchard’s bedroom and .10 grams of

methamphetamine from a plastic plate beneath his bed. At

the Roberts residence, officers also seized four rifles and

two shotguns from the aforementioned enclosed porch

area, and they seized a .32-caliber revolver and ammuni-

tion from underneath the mattress in Blanchard’s bedroom.

On April 8, 2005, Blanchard was charged in a federal

indictment with one count of manufacturing metham-

phetamine, in violation of 21 U.S.C. §§ 841(a)(1),

841(b)(1)(C) (Count One), and one count of unlawful

possession of a firearm by a convicted felon, in violation

of 18 U.S.C. § 922(g) (Count Two). The indictment alleged

that both offenses occurred “on or about December 30,

2004.”

Blanchard’s trial began on March 27, 2006. At trial, the

government presented the evidence seized from both

residences, as well as expert testimony opining that a

“meth lab” existed at the Paxton residence and that

materials consistent with the manufacture of metham-

phetamine were found at the Roberts residence. Marshall

Jr. testified regarding his observations in late 2004 that

6 No. 07-2780

led him to suspect that his father was using methamphet-

amine. He also testified regarding the firearms seized

from the porch area of the Roberts residence; he ex-

plained that all but one of the guns belonged to his father,

that his father controlled and directed both the 2001

removal and the 2004 retrieval/return of those firearms,

and that he stopped using the porch area of the Roberts

residence as his bedroom in September or October 2004,

allowing his father unfettered access to the porch area

throughout the remainder of the year. Blanding, testifying

on behalf of the government pursuant to an immunity

agreement, testified that Blanchard allowed her to use

the Paxton residence for methamphetamine manufactur-

ing, and that in exchange, she supplied him with metham-

phetamine. In addition, she testified that Blanchard

sometimes supplied materials and assisted in the manu-

facturing process. She further testified that on or about

Christmas Eve 2004, she and Blanchard completed the

manufacture of a quantity of methamphetamine at the

Roberts residence. Finally, she testified that Blanchard

had shown her a handgun that he kept beneath the mat-

tress in his bedroom at the Roberts residence.

The trial concluded on March 31, 2006, with the jury

finding Blanchard guilty on both counts. The district court

rejected Blanchard’s post-verdict motion for judgment of

acquittal, characterizing the evidence in support of

both counts as “overwhelming.” The court sentenced

Blanchard to 150 months’ imprisonment on Count One

and 120 months’ imprisonment on Count Two, to be

served concurrently. In addition, the court sentenced

Blanchard to three years of supervised release and a $100

No. 07-2780 7

special assessment. Blanchard timely filed this appeal,

challenging both his convictions and his sentence.

II. Discussion

On appeal, Blanchard challenges both convictions on

a variety of grounds, including (1) the denial of his

pretrial motions for a bill of particulars and a severance;

(2) an alleged fatal variance between the date specified

in the indictment and the evidence presented at trial,

resulting in constructive amendment of the indictment;

(3) certain statements made by the trial judge at a pretrial

suppression hearing and subsequently introduced at

trial; and (4) the sufficiency of the evidence. We address

these arguments in turn below. Blanchard also chal-

lenges his sentence, but in light of our conclusion with

regard to his convictions, we need not address that chal-

lenge.

A. Pretrial Motions for Bill of

Particulars and Severance

Before trial, Blanchard moved for a bill of particulars

pursuant to Federal Rule of Criminal Procedure 7(f). The

indictment alleged that Blanchard committed both the

methamphetamine manufacturing offense and the fire-

arms offense “on or about December 30, 2004, in the

Central District of Illinois.” In moving for a bill of particu-

lars, Blanchard sought more specific information con-

cerning the time and place of the alleged offenses, as

well as the identity of the firearm (or firearms) alleged in

8 No. 07-2780

Count Two. The district court denied that motion, finding

that “the charges are not complex, the indictment is

sufficiently clear, and Defendant has been provided with

discovery regarding the charges.” Blanchard now appeals,

contending that the denial of this motion deprived him of

an adequate opportunity to prepare for and meet the

government’s evidence at trial.

We review the trial court’s discretionary decision to

deny a motion for a bill of particulars deferentially,

reversing only upon an abuse of that discretion. United

States v. Fassnacht, 332 F.3d 440, 446 (7th Cir. 2003); see also

United States v. Hernandez, 330 F.3d 964, 975 (7th Cir. 2003).

We will reverse only upon a showing of actual prejudice

to the defendant. Hernandez, 330 F.3d at 975.

Our bill-of-particulars analysis is similar to our con-

stitutional sufficiency-of-the-indictment analysis; in both

cases, the key question is whether the defendant was

sufficiently apprised of the charges against him in order

to enable adequate trial preparation. See Fassnacht, 332

F.3d at 446; see also Hernandez, 330 F.3d at 975 (“[A] bill

of particulars [is] unnecessary where the indictment sets

forth the elements of the charged offenses and provides

sufficient notice of the charges to enable the defendant

to prepare his defense.”). Information relevant to the

preparation of a defense includes the elements of each

charged offense, the time and place of the accused’s

allegedly criminal conduct, and a citation to the statute or

statutes violated. See Fassnacht, 332 F.3d at 446. Where the

indictment fails to provide the full panoply of such infor-

mation, a bill of particulars is nonetheless unnecessary

No. 07-2780 9

if the information “is available through ‘some other

satisfactory form,’ such as discovery.” Hernandez, 330 F.3d

at 975 (quoting United States v. Canino, 949 F.2d 928, 949

(7th Cir. 1992)).

Because Blanchard had ample access to the information

necessary to prepare his defense, the district court did not

abuse its discretion here. Although the indictment was

somewhat sparse, Blanchard was the beneficiary of exten-

sive pretrial discovery. For example, he received law

enforcement reports concerning the searches of his two

residences, the corresponding search warrants and sup-

porting documents, and a report of his statements to

law enforcement officers. Given knowledge of the evi-

dence seized from both residences and the terms of the

indictment, Blanchard was undoubtedly aware that the

government might seek to prove that he manfuctured

methamphetamine at either residence and that he pos-

sessed firearms at the Roberts residence on a date approxi-

mating the “on or about” date alleged in the indictment.

This was more than sufficient to enable Blanchard to

prepare for trial. See Fassnacht, 332 F.3d at 446 (noting

that “the defendant’s constitutional right is to know the

offense with which he is charged, not to know the details

of how it will be proved” (quoting United States v. Kendall,

665 F.2d 126, 135 (7th Cir. 1981))). Therefore, the district

court did not abuse its discretion in denying Blanchard’s

motion for a bill of particulars.

Before trial, Blanchard also moved to sever Counts One

and Two for separate trials pursuant to Federal Rules of

Criminal Procedure 8(a) and 14. He now appeals the

10 No. 07-2780

district court’s denial of that motion, arguing that the

joinder of the drug and firearms offenses was improper

and unduly prejudiced him at trial. Although Blanchard

waived the Rule 14 severance aspect of this motion by

failing to renew it at the close of the evidence, see United

States v. Ross, 510 F.3d 702, 711 (7th Cir. 2007) (ex-

plaining that a Rule 14 motion for severance is waived if

not renewed at the close of the evidence), the Rule

8 misjoinder aspect of the motion, though also not re-

newed, was properly preserved. See id. at 710 n.1 (“A

defendant need not renew a Rule 8 motion at the close

of the evidence to preserve the argument for appeal.”).

We review Blanchard’s misjoinder claim de novo,

focusing on the face of the indictment rather than the

evidence adduced at trial. Id. at 710; see also United States v.

Lanas, 324 F.3d 894, 899 (7th Cir. 2003). Federal Rule of

Criminal Procedure 8(a) permits joinder of offenses

where they are (1) “of the same or similar character,”

(2) “based on the same act or transaction,” or (3) “consti-

tute parts of a common scheme or plan.” We construe this

rule broadly in the interest of conserving judicial resources

and avoiding costly, duplicative trials. United States v.

Nettles, 476 F.3d 508, 516 (7th Cir. 2007); United States v.

Rollins, 301 F.3d 511, 518 n.1 (7th Cir. 2002). Even

where misjoinder occurs, we will not reverse unless the

defendant can show actual prejudice—i.e., that the error

“had substantial and injurious effect or influence in

determining the jury’s verdict.” Ross, 510 F.3d at 710-11

(citing United States v. Lane, 474 U.S. 438, 449 (1986)); see also

United States v. Hubbard, 61 F.3d 1261, 1271 (7th Cir. 1995).

No. 07-2780 11

The first obstacle to Blanchard’s misjoinder argument is

our presumption that, because of the close relationship

between drug trafficking and firearms offenses, joinder of

such offenses is ordinarily proper. See United States v.

Stokes, 211 F.3d 1039, 1042 (7th Cir. 2000). This presump-

tion arises from the “natural inferences that may be

drawn from the contemporaneous possession of guns

and drugs or drug paraphernelia: the firearm is an indica-

tion of drug activity, and participation in drug trafficking

supplies a motive for having the gun.” Id. (quoting Hub-

bard, 61 F.3d at 1270). Although that presumption might

be overcome by, for example, a significant temporal

disconnect between the alleged offenses, see Hubbard, 61

F.3d at 1271 (concluding that firearms and narcotics

charges were misjoined where nearly a year and a half

transpired between the two offenses), there was no such

disconnect here; the indictment alleged that the metham-

phetamine manufacturing and firearms offenses occurred

at approximately the same time, and evidence of both

offenses was recovered from the Roberts residence. See

Stokes, 211 F.3d at 1042; United States v. Windom, 19 F.3d

1190, 1197 (7th Cir. 1994) (explaining that “joinder of a

weapons offense with drug charges is proper under

Rule 8(a), especially when the weapons and drugs are

found in the same search”). Therefore, the district court

did not err in joining these offenses for trial under

Rule 8(a).

Moreover, even if the offenses had been misjoined, the

error would be harmless because Blanchard cannot show

prejudice. See, e.g., Ross, 510 F.3d at 710-11; Hubbard, 61

F.3d at 1272. Blanchard points out that, absent joinder of

12 No. 07-2780

the two counts, the drug offense could have been tried

without informing the jury that he was a convicted felon.

Conceding this point, we are not convinced that the jury’s

knowledge of Blanchard’s prior felony conviction had a

“substantial and injurious effect or influence” on their

deliberations. Ross, 510 F.3d at 711. As we explain in

further detail below, the evidence of Blanchard’s guilt

on both counts was considerable, mitigating any risk that

the jury’s decision was influenced by knowledge that

Blanchard had previously committed a felony. See id.

Furthermore, the jury was properly instructed to con-

sider each count and the corresponding evidence sepa-

rately, not allowing their decision on one count to color

their decision on the other. There is no reason to presume

that they did not adhere to these instructions. Id; see also

United States v. Coleman, 22 F.3d 126, 135 (7th Cir. 1994)

(explaining that where the “jury [is] instructed to con-

sider each count and the relating evidence separately . . .

there [is] no reason to suppose that it would disregard

this mandate” (citation omitted)).

To recap, the district court did not abuse its discretion in

denying Blanchard’s motion for a bill of particulars,

because Blanchard was properly apprised of the charges

against him and was the beneficiary of extensive pretrial

discovery that filled in any gaps in the somewhat-sparse

indictment; thus, he was not denied the opportunity to

adequately prepare for trial. In addition, Blanchard has

demonstrated neither misjoinder of the drug and firearms

counts nor prejudice. Accordingly, the district court did

not err in joining Counts One and Two for trial. Blanchard

waived the Rule 14 aspect of his motion by failing to

No. 07-2780 13

renew it at the close of the evidence, but even if it had

not been waived, his inability to show prejudice would

doom this claim as well.

B. Constructive Amendment of Indictment

Blanchard next argues that there was a fatal variance

between the date alleged in the indictment—on or about

December 30, 2004—and the evidence presented at trial

regarding the date (or dates) on which he manufactured

methamphetamine, thereby constructively amending the

indictment in violation of the Fifth Amendment.

Blanchard’s argument focuses primarily on Blanding’s

testimony. At trial, she testified that she manufactured

methamphetamine with Blanchard on several occasions

in November and December 2004, and that the last occa-

sion was on “Christmas Eve or right before Christmas.”

However, on cross-examination, Blanding conceded that

she could be no more specific than “on or before Christmas

Eve,” acknowledging that her memory was impaired

because she was using methamphetamine regularly in

late 2004. In addition, a government expert conceded

on cross-examination that he could not definitively

state when the “meth lab” at the Paxton residence was

created, and that it might have been created as many as

six months earlier. Thus, Blanchard argues, the govern-

ment’s evidence regarding methamphetamine manu-

facturing is too temporally indefinite—spanning a period

of up to six months—to sustain a conviction consistent

with the “on or about” date alleged in the indictment.

Constructive amendment of an indictment occurs

where the permissible bases for conviction are broadened

14 No. 07-2780

beyond those presented to the grand jury. United States v.

Folks, 236 F.3d 384, 390 (7th Cir. 2001). “To avoid running

afoul of the Fifth Amendment, the allegations in the

indictment and the proof at trial must match in order ‘to

insure that the defendant is not subject to a second prose-

cution, and to give the defendant reasonable notice so

that he may prepare a defense.’ ” Id. (quoting United States

v. McKinney, 954 F.2d 471, 480 (7th Cir. 1992)). However,

where an indictment alleges that an offense occurred “on

or about” a certain date, “the defendant is deemed to be

on notice that the charge is not limited to a specific date”

and “cannot make the requisite showing of prejudice

based simply on the fact that the government has failed

to prove a specific date.” Id. at 391 (quoting United States

v. Leibowitz, 857 F.2d 373, 379 (7th Cir. 1988)). Accordingly,

where the “on or about” language is used, the govern-

ment need not prove the exact date of the offense “as long

as a date reasonably near that named in the indictment is

established.” United States v. Ross, 412 F.3d 771, 774 (7th

Cir. 2005) (emphasis added) (reciting the “canonical

formula” to be applied when the “on or about” language

is used in the indictment); see also Leibowitz, 857 F.2d at

379 (citing collected cases).

The question, then, is whether the government presented

evidence that would support a date “reasonably near” the

date specified in the indictment, and we have little

trouble answering this question in the affirmative.

Blanding’s testimony—that she and Blanchard manufac-

tured methamphetamine on approximately December 24,

2004—provided a reasonable basis for the jury to

conclude that Blanchard manufactured methamphet-

No. 07-2780 15

amine within days of the “on or about” date specified in

the indictment, December 30, 2004. Although Blanding

conceded on cross-examination that she could not pin-

point the exact date, such laser-like precision was not

necessary for her testimony to support a date “reasonably

near” that alleged in the indictment. See, e.g., Leibowitz,

857 F.2d at 379 (concluding that 21-day variance between

date proved at trial and “on or about” date alleged in

indictment was “reasonably near”). Moreover, the jury

was expressly instructed not to convict unless they con-

cluded that Blanchard manufactured methamphetamine

on a day “reasonably near” that alleged in the indictment.

Cf. Ross, 412 F.3d at 774-75 (jury instructions expressly

permitting more than four-year variance from “on or

about” date impermissibly amended indictment). Indeed,

because evidence was presented supporting a date “rea-

sonably near” that alleged in the indictment, and because

the jury was properly instructed on this issue, Blanchard’s

complaint is really directed to the facts found by the

jury; however, that is a battle that Blanchard lost at trial,

and which he may not re-fight here on appeal.

Finally, we note that one of the primary concerns under-

lying the prohibition on constructive amendments—the

impairment of the defendant’s ability to prepare his

defense—is simply not implicated here. See Folks, 236

F.3d at 392. As already noted, extensive pretrial discovery

afforded Blanchard more than sufficient notice of how

the government might attempt to prove its case at trial.

Indeed, Blanchard does not argue that he was unfairly

surprised by the evidence produced or the theories prof-

fered by the government at trial. For these reasons, there

was no constructive amendment of Blanchard’s indictment.

16 No. 07-2780

C. Introduction at Trial of Court’s

Suppression-Hearing Statements

Blanchard next challenges the introduction at trial of

certain statements originally made by the trial judge at a

pretrial suppression hearing, styling his argument in

terms of both judicial bias and prosecutorial misconduct.

Before turning to the merits of Blanchard’s arguments on

this point, some additional background is necessary.

As already discussed, at trial, Marshall Jr. offered

testimony that was damaging to his father’s case. With

respect to the firearms charge, he testified that his father

owned all but one of the firearms seized from the porch

area of the Roberts residence (the “porch firearms”), that

his father directed him to remove those firearms from

the residence in 2001 and return them in late 2004, and

that his father enjoyed unfettered access to the porch

area after September or October 2004. And with respect

to the methamphetamine manufacturing charge, Marshall

Jr. testified that he noticed certain physical changes in

his father, including weight loss and facial sores, in late

2004. He also testified regarding his discovery of certain

items in the Roberts residence, including the off-white

substance that later tested positive for ephedrine, that

led to the search of Blanchard’s two residences and his

subsequent arrest.

At the grand jury hearing nearly one year before trial, in

April 2005, Marshall Jr. had offered testimony largely

consistent with his eventual trial testimony. With respect

to the porch firearms, he testified that Blanchard owned

them and had ordered Marshall Jr.’s removal of them

from the Roberts residence in 2001; because Lori

No. 07-2780 17

(Blanchard’s ex-wife and Marshall Jr.’s mother) had moved

out of the house, Blanchard, a convicted felon, could no

longer plausibly deny possession by attributing owner-

ship to her. Thus, Marshall Jr. and his father moved the

guns to a family friend’s place of business. When that

friend died in 2004, Marshall Jr. testified, he obtained a

Firearm Owner’s Identification (FOID) card so that he

could retrieve the firearms and return them to the Roberts

residence while allowing his father, in the event that

the firearms were discovered by authorities, to plausibly

deny ownership/possession (distinct concepts which

Blanchard may have incorrectly conflated).

However, following the grand jury hearing, at a pretrial

suppression hearing on November 15, 2005, Marshall Jr.

offered a remarkably different version of events. He

testified that the porch firearms originally belonged to

his mother but had passed down to him when she left

the Roberts residence; his father was not part of the

purported chain of ownership. In addition, Marshall Jr.

testified that he removed those firearms from the Roberts

residence in 2001 and returned them in 2004 of his own

volition, without prompting or direction from his father.

Finally, he testified that in late 2004, the porch area of the

Roberts residence served as his “apartment,” and he

enjoyed exclusive access to that area by keeping it locked

and maintaining possession of the only keys. In short, after

testifying at the grand jury hearing that his father both

owned and controlled the porch firearms, Marshall Jr.

testified at the suppression hearing that his father did not

own, control, or even have physical access to them.

18 No. 07-2780

When Marshall Jr. altered his story at the November 15

suppression hearing, the government (unsurprisingly)

confronted him with his inconsistent grand jury testi-

mony. On cross-examination, the government reminded

Marshall Jr. that he was under oath and asked whether

he would like to alter his testimony in light of his previous

grand jury testimony.

Q. Do you want to change your testimony at all in

reference to your testimony that this house had

a separate apartment under your sole control

and that these guns were yours? Do you want

to alter that testimony at all?

A. I, I’m not sure. I don’t, I don’t understand.

...

Q. Do you want to be—do you want to persist in

stating that this house had been sectioned off

to where there’s an area—I believe [defense

counsel] referred to it as an apartment of yours

that you had sole access to and that these guns

were, were yours? Do you want to persist in

that testimony?

A. Yes.

(Suppression Hr’g Tr. 85-86.) The government then con-

fronted Marshall Jr. with specific portions of his prior

inconsistent testimony, including his indication that his

father owned the porch firearms. The government also

reminded Marshall Jr. of his testimony that, in order to

protect his father (a convicted felon) in the event that the

firearms were discovered by authorities, he and his

No. 07-2780 19

father had jointly removed the firearms from the Roberts

residence in 2001 and then returned them in 2004, only

after Marshall Jr. had procured an FOID card. During the

course of this questioning, the court occasionally inter-

jected its own questions, seeking clarification of Marshall

Jr.’s answers.

The trial judge’s comments that are the subject of

Blanchard’s current challenge came in response to a

defense counsel objection in the midst of this cross-exami-

nation. Defense counsel objected when the government

pointed out that Marshall Jr. had never described the

Roberts residence porch area as his exclusively controlled

“apartment” at the grand jury hearing, contending that

this did not tend to impeach Marshall Jr. The court over-

ruled that objection, and offered the following explana-

tory commentary:

I believe it is [impeachment]. The Court finds it to

be impeachment. The Court finds this witness not

to be credible and that the testimony he has given

today is not credible.

The Court’s had a chance to observe the manner

and demeanor of his testimony. The manner and

demeanor on direct was very assertive. . . . I deter-

mined that I would ask some questions. And as

soon as I began questions about the ownership of

the guns back in 2001—of course, I have no knowl-

edge of the grand jury testimony—all of a sudden,

the demeanor began changing dramatically, how

he hangs his head, how he looks, how his facial

mannerisms changed; and it was very obvious

20 No. 07-2780

to me after 13 years of being a criminal lawyer

and 17 years of being a judge—30 years of being

experienced—that his answers all of a sudden

became deceptive, less than credible.

And, of course, now [the prosecutor] has asked

him specific questions that lead me to the undeni-

able conclusion that he has not been credible and,

because he knew that his answers that he was

giving were not the same answers he had given

to the grand jury in April.

(Suppression Hr’g Tr. 92-93.) And at the conclusion of the

cross-examination, the government asked, “So would it

be accurate to say . . . that the testimony you’ve given

today under oath before this Court has been false and

misleading?” (Id. 100.) The court intervened, interposing

a Fifth Amendment objection on Marshall Jr.’s behalf.

Following the conclusion of the November 15 hearing,

Marshall Jr. had time to ponder the comments of the court

and the government, and he became concerned that his

testimony might lead to legal trouble; soon thereafter, he

contacted the government’s case agent to express his

concern. They agreed that Marshall Jr. would meet with

the case agent and the prosecutor at the government’s

office, and that meeting took place a few days later. At

that meeting, the case agent and the prosecutor advised

Marshall Jr. that they believed he had testified untruthfully

at the suppression hearing and that he could face perjury

charges. Marshall Jr. agreed to provide a tape-recorded

statement correcting those portions of his November 15

testimony that had been untruthful.

No. 07-2780 21

On December 12, 2005, at a follow-up hearing to com-

plete argument on Blanchard’s pending suppression

motions, the court allowed the government to reopen

cross-examination of Marshall Jr. On the reopened cross-

examination, Marshall Jr. recanted those portions of the

November 15 testimony that had contradicted his grand

jury testimony. For example, Marshall Jr. testified that

his father owned almost all of the porch firearms, that his

father directed the 2001 removal and 2004 return of those

firearms, and that his father enjoyed unfettered access

to the porch area beginning sometime around October 2004

(when Marshall Jr. relocated his bedroom to another part

of the house). Marshall Jr. also testified that, following his

grand jury testimony, his father had not-so-subtly pres-

sured him to change his testimony, telling him that the

guns were his and that the porch area was his “apartment.”

As previously noted, at trial, Marshall Jr. testified on

behalf of the government and offered a version of events

consistent with his grand jury testimony and his testimony

at the December 12 hearing. In addition, he explained that

he had testified untruthfully at the November 15 hearing,

and that on cross-examination that day, the government

had exposed discrepancies between his testimony and his

prior grand jury testimony. He further testified that,

following the November 15 hearing, he discussed his

concerns about having testified untruthfully with his

mother. Then, he explained, he contacted the government

to express his concern that he might have gotten himself

into trouble by testifying untruthfully, hoping to “resolve

the issue.” Marshall Jr. further testified that he was

recalled to the stand at the December 12 hearing, and at

22 No. 07-2780

that time, he corrected those portions of his November 15

testimony that were untruthful.

As might be expected, defense counsel then sought to

impeach Marshall Jr.’s testimony by showing his incentive

to cooperate with the government based upon his fear of

prosecution for perjury. First, defense counsel asked

whether, following the November 15 hearing, anyone

from the government initiated contact with Marshall Jr.

either before or as he left the courtroom, and he indicated

that they did not. Defense counsel then asked whether,

at Marshall Jr.’s meeting with the case agent and the

prosecutor, the government told him that he could be

charged with perjury for lying under oath, and he indi-

cated that they did. He also testified that they discussed

potential penalties, including a fine and jail time. Marshall

Jr. acknowledged the “cloud of a perjury charge” that

followed these conversations and his desire to obtain

“some mercy for what [he] did” by cooperating with the

government.

On redirect, the government immediately sought to

clarify who had first suggested that Marshall Jr.’s testi-

mony at the November 15 hearing may have been untruth-

ful. When Marshall Jr. responded, “The judge and you,”

the prosecutor was not satisfied; he asked Marshall Jr. if

he remembered what the judge had said to him. Defense

counsel promptly objected and requested a sidebar, but

the judge rejected that request, stating, “No. If I said

something, it will be in the record, and you have a copy

of the record. Everybody’s been talking about what

everybody said. So if you have what I said, it’s on the

No. 07-2780 23

record. It can be put before the jury.” (Trial Tr. 221.) Then,

after a second rejected request for a sidebar,2 and over

defense counsel’s repeated objections, the prosecutor

read aloud the entirety of the trial judges’s suppression-

hearing comments indicating his belief that Marshall Jr.

was testifying untruthfully. Although we have already

recounted those comments above and need not repeat

them in full here, the last of those comments, as quoted by

the prosecutor at trial, bears repeating:

And, of course, now [the prosecutor] has asked

him specific questions that lead me to the undeni-

able conclusion that he has not been credible

because he knew that his answers that he was giving

were not the same answers that he had given to the

grand jury in April.

(Trial Tr. 223) (emphasis added).

Adding another wrinkle to this already unusual event,

during the prosecutor’s reading of the court’s suppression-

2

We have previously expressed our concern that a district

court’s refusal to entertain any sidebars, particularly where the

trial judge’s own comments or questions become the subject of

a potential objection, may put defense counsel in an “awkward

position.” See United States v. McCray, 437 F.3d 639, 644 (7th Cir.

2006) (a case in which the same district judge presided). We

reiterate that concern here; a full explanation of defense coun-

sel’s objection in the presence of the jury risked the same

prejudice to the defendant as the prosecutor’s recitation of the

court’s comments. Under these circumstances, a sidebar

could have been particularly useful in “avoid[ing] the risk of

unforeseen prejudice.” See id.

24 No. 07-2780

hearing comments, the trial judge characterized his

comments, in response to a defense counsel objection and

in the presence of the jury, as “judicial testimony.” The

court stated, “It’s my statement. You’ve got the record. Has

he misread it? . . . It’s a direct statement of the Court in

a judicial proceeding. You were present. You have a copy

of it. Has he misread what I said? . . . This is reading

judicial testimony.” 3 (Trial Tr. 222-23) (emphasis added).

After the prosecutor finished reading the court’s

suppression-hearing comments, he asked whether Mar-

shall Jr. recalled the judge making those comments at the

November 15 hearing, and Marshall Jr. indicated that he

did. And the prosecutor pressed further, asking:

Q. [W]as that the first person to raise any issue

with you about whether or not you were telling

the truth?

A. Yes.

Q. It wasn’t me, was it?

A. No.

Q. It wasn’t [the government’s case agent], was it?

3

Given Rule 605’s prohibition on a trial judge offering testi-

mony, this characterization should have immediately raised red

flags. See Fed. R. Evid. 605 (“The judge presiding at the trial

may not testify in that trial as a witness.”). Although Blanchard

failed to raise this specific objection at trial, he did not need to

do so in order to preserve the issue for review. See id. (“No

objection need be made in order to preserve this point.”).

No. 07-2780 25

A. No.

(Trial Tr. 224.)

During a break in the proceedings following the con-

clusion of Marshall Jr.’s testimony, and outside the pres-

ence of the jury, the trial judge sought to clarify his ratio-

nale for permitting the introduction of his suppression-

hearing commentary:

The Court allowed [the prosecutor] to read the

Court’s statements into the record because there

had been much testimony concerning the Novem-

ber 15th testimony of Marshall Blanchard Jr. . . . .

[Defense counsel] determined as a trial tactic to

lead the jury to believe that somehow Mr.

Blanchard Jr. after he had left court was either

contacted or discussed with [the prosecutor] or

[the case agent] for the first time concerning his

testimony. That clearly opened the door for [the

prosecutor] to read into the record the Court’s

comments from November 15th because that was

clearly the first time Marshall Blanchard was

confronted with what this Court believed . . . to be

perjury. . . . I did not want to rule this way on

the record in front of the jury as to why it was

allowing [the prosecutor] to proceed because the

inference of the Court’s ruling could have been

prejudicial to the defendant. So the Court merely

wanted [the prosecutor] to read into the record

accurately and clearly the Court’s comments,

which were no surprise to [defense counsel]. And

while [defense counsel] protested loudly, causing

26 No. 07-2780

the Court to have to make it clear, the only objec-

tion he could have was whether it was being read

accurately. I’m doing this out of the presence of

the jury now so as not to prejudice the defendant

for the trial tactic that opened the door.

(Trial Tr. 255-56.)

Blanchard now contends that the prosecutor’s use at trial

of the court’s suppression-hearing commentary—what the

trial judge characterized as his “judicial testimony”—

amounted to both judicial bias and prosecutorial mis-

conduct. Blanchard argues that the introduction of the

court’s statements effectively constituted a judicial en-

dorsement of the most damaging version of Marshall Jr.’s

testimony and thereby deprived him of a fair trial. In

addition, at trial, Blanchard objected on the grounds of

relevance and unfair prejudice. And there is yet another

evidentiary issue presented where so-called “judicial

testimony” is put before the jury, as in this case. See Fed. R.

Evid. 605. Before considering the broader fair-trial issues,

we first take up the narrower, threshold evidentiary issues,

which we review for an abuse of discretion. See United

States v. Samuels, 521 F.3d 804, 813 (7th Cir. 2008).

Federal Rule of Evidence 605 prohibits a presiding

district court judge from testifying at trial as a witness or

engaging in equivalent conduct. See United States v. Sliker,

751 F.2d 477, 499 (2d Cir. 1984) (discussing the purpose of

Rule 605 in light of the advisory committee’s notes).

Although a district court judge may facilitate the jury’s

understanding of the case by questioning witnesses and

explaining, summarizing, and commenting on the evi-

No. 07-2780 27

dence, United States v. Paiva, 892 F.2d 148, 159 (1st Cir.

1989) (citing Quercia v. United States, 289 U.S. 466, 469-70

(1933)); United States v. Nickl, 427 F.3d 1286, 1293 (10th Cir.

2005), it is improper for the judge to add to the evidence by

assuming the role of a witness, Nickl, 427 F.3d at 1293;

Paiva, 892 F.2d at 159; Sliker, 751 F.2d at 499. Where a trial

judge’s comments are based upon his own personal

knowledge of matters external to the trial, those com-

ments may constitute impermissible judicial testimony.

See, e.g., United States v. Berber-Tonico, 510 F.3d 1083, 1091

(9th Cir. 2007) (concluding that trial judge “violated Rule

605 when he interjected his own observations” on facts

which were neither in the record nor reasonably derived

therefrom, but did not violate Rule 605 where he merely

summed up the evidence); Nickl, 427 F.3d at 1293-94

(noting that “presiding judge’s commentary . . . added

new evidence which the prosecution was otherwise

unable to establish”).

In this case, we conclude that the introduction of the trial

judge’s suppression-hearing comments amounted to

impermissible judicial testimony. First, the judge’s com-

ments were based upon and incorporated his own

personal observations of Marshall Jr. at the November 15

suppression hearing; indeed, the trial judge’s comments

indicated that his opinion of Marshall Jr.’s credibility was

based largely upon shifts in Marshall Jr.’s “manner and

demeanor” that day. Such comments violate Rule 605 by

“add[ing] new evidence which the prosecution was

otherwise unable to establish.” Nickl, 427 F.3d at 1293-94;

see also Berber-Tonico, 510 F.3d at 1091.

28 No. 07-2780

While it is true that the prosecutor, rather than the

trial judge, read the judge’s suppression-hearing com-

ments into the record at trial, this in no way alters our

conclusion. In the presence of the jury, the trial judge

acknowledged that the suppression-hearing comments

were his own, insisted that the only valid objection to the

comments’ introduction could be if they were not read

“word for word,” and characterized the comments as his

“judicial testimony.” Under such circumstances, Rule 605

is violated; the rule would serve little purpose if it were

violated only where a judge observes all the formali-

ties—taking of an oath, sitting in the witness chair, etc.—of

an ordinary witness. Cf. Nickl, 427 F.3d at 1292-93 (finding

that the trial judge violated Rule 605 when he interrupted

the cross-examination of a witness and offered, in

response to defense counsel’s question, his own opinion

on an ultimate factual issue).

Before turning to our harmless error analysis, we pause

to consider Blanchard’s additional argument that the

danger of unfair prejudice from the “judicial testimony”

significantly outweighed its probative value, compelling

exclusion. See Fed. R. Evid. 403. We first note that the

trial judge’s suppression-hearing comments were of

minimal relevance; the saga of Marshall Jr.’s shifting

testimony was already before the jury, and the judge’s

credibility evaluation had little, if any, “tendency to make

the existence of any [material fact] more probable or less

probable than it would [have been] without the evidence.”

See Fed. R. Evid. 401. The government concedes as much

by not arguing that this evidence had any independent

relevance; instead, following the district court’s rationale,

No. 07-2780 29

the government insists that defense counsel “opened the

door” to this line of questioning. The government cites

to United States v. Peco, 784 F.2d 798, 805 (7th Cir. 1986), for

the proposition that “[w]hen a party opens up a subject,

even though it may not be strictly relevant to the case, he

cannot complain on appeal if the opposing party intro-

duces evidence on the same subject.” Id. (quoting United

States v. Carter, 720 F.2d 941, 948 (7th Cir. 1983)). And the

government asserts that defense counsel’s cross-examina-

tion of Marshall Jr. opened the door to its attempt to

show that it was the district court, rather than the gov-

ernment, who first challenged Marshall Jr.’s truthfulness

at the November 15 hearing.

We disagree. Although the trial transcript reveals that

defense counsel asked Marshall Jr. whether anyone

from the government initiated contact with him

following the November 15 hearing, he responded in the

negative. Indeed, Marshall Jr. indicated that he contacted

the government on his own, after discussing his con-

cerns with his mother, in an effort to correct his testimony.

And although Marshall Jr. then testified that, at his meet-

ing with the government, they discussed potential

perjury charges and corresponding penalties, this went to

the issue of Marshall Jr.’s motivation for changing his

testimony, not the issue of who first suggested that he

had been untruthful at the November 15 hearing.

In addition, the government’s “open the door” argument

rests upon a flawed factual premise; in fact, it was the

government, not the trial judge, who first challenged

Marshall Jr.’s truthfulness when the prosecutor con-

30 No. 07-2780

fronted Marshall Jr. with his prior inconsistent grand

jury testimony at the November 15 hearing. In so doing,

the government repeatedly asked Marshall Jr. whether,

in light of his earlier testimony, he wished to change any

of his testimony that day. It was only after defense

counsel objected to this line of questioning that the court

offered its own opinion of Marshall Jr.’s truthfulness.

Moreover, even if defense counsel had somehow inti-

mated on cross-examination that the government first

challenged Marshall Jr.’s truthfulness, this would have

come as no great surprise to the jury, because the govern-

ment’s direct examination of Marshall Jr. seemed to

establish just that:

Q. [A]fter [defense counsel] finished asking you

his questions [at the November 15 hearing],

did I have an opportunity to ask you ques-

tions?

A. Yes.

Q. And did you know at the time that, whether or

not the government had in its possession a full

transcript of everything you said before the

grand jury?

A. I was—I was pretty sure you did, but I wasn’t

sure entirely.

Q. And when I asked you questions that day, did

I ask you, or point out and ask you to explain

the difference between what you told the

grand jury under oath six months earlier and

what you told the judge under oath that day?

No. 07-2780 31

A. Yes.

Q. Did I ask you those questions?

A. Yes.

Q. Were you able to explain the difference?

A. No.

Q. How was that day for you?

A. One of the worst days of my life.

(Trial Tr. 128-29.) The absence of a factual underpinning

for the government’s argument only strengthens our

conclusion; there was no compelling justification for

the introduction of the court’s statements.

And a compelling justification was required, because

not only was the trial judge’s suppression-hearing com-

mentary of dubious relevance, but the danger of unfair

prejudice was unquestionably high. See Fed. R. Evid. 403

(relevant evidence “may be excluded if its probative

value is substantially outweighed by the danger of unfair

prejudice”). As explained further below, the introduction

of this evidence risked placing the weight of the court’s

authority behind the government-friendly version of

Marshall Jr.’s testimony; thus, there was a significant risk

of unfair prejudice to the defendant. Cf. United States v.

Martin, 189 F.3d 547, 553 (7th Cir. 1999) (“Because trial

judges wield substantial influence over juries . . . . [a] judge

cannot assume the role of an advocate for either side . . . .”).

Therefore, we conclude that the introduction of the

trial judge’s suppression-hearing comments was erro-

neous under Rules 605 and 403, and the only re-

32 No. 07-2780

maining question is whether this error was nonetheless

harmless. “The test for harmless error is whether, in the

mind of the average juror, the prosecution’s case would

have been significantly less persuasive had the improper

evidence been excluded.” United States v. Emerson, 501

F.3d 804, 813 (7th Cir. 2007) (internal quotation marks

omitted) (quoting United States v. Owens, 424 F.3d 649, 656

(7th Cir. 2005)); see also Fed. R. Crim. P. 52(a) (“Any

error . . . that does not affect substantial rights must be

disregarded.”). At the outset, we note that it is difficult to

imagine a scenario in which the court’s pronouncements

on the credibility of a key government witness could fail

to influence the jury. Indeed, Rule 605 is intended to

guard against the “prejudice which may arise . . . because

of the judge’s influential position with the jury.” Nickl, 427

F.3d at 1293 (citing Fed. R. Evid. 605 advisory committee’s

note). And the magnitude of this influence is difficult to

overstate; as the Supreme Court has explained, “The

influence of the trial judge on the jury is necessarily and

properly of great weight and his lightest word or intima-

tion is received with deference, and may prove control-

ling.” Quercia, 289 U.S. at 470 (internal quotation omitted);

see also United States v. Curry, No. 07-2455, slip op. at 14

(7th Cir. Aug. 15, 2008) (noting that, because “trial judges

wield substantial influence over juries,” a judge “should

take special care not to indicate his beliefs about a wit-

ness’ honesty” (quotation omitted)); Martin, 189 F.3d at 553

(noting judge’s “substantial influence” over jury and

consequent need for the judge to avoid assuming the

role of advocate); United States v. Hickman, 592 F.2d 931,

933 (6th Cir. 1979) (noting that a trial judge’s “position

before a jury is overpowering”).

No. 07-2780 33

The potentially “overpowering” influence of the trial

judge on the jury takes on added significance because of

the nature of Marshall Jr.’s shifting testimony in this case.

His pretrial and trial testimony presented essentially two

stories; first, at the grand jury hearing, he told the story

favorable to the government. He then reversed course at

the November 15 suppression hearing, contradicting

portions of his grand jury testimony in a manner that

strengthened his father’s defense. He then reversed course

once again, disavowing his November 15 testimony and

essentially re-adopting the story he told before the

grand jury, a story that he stuck to at trial. And naturally,

defense counsel sought to show on cross-examination that

Marshall Jr. had an incentive to change his November 15

testimony after discussing potential perjury charges with

the government. Given this context, the introduction of

the trial judge’s earlier comments—expressing his unequiv-

ocal belief that Marshall Jr. was untruthful in departing

from his grand jury testimony at the November 15

hearing—conveyed, at a minimum, judicial disapproval

of the most defendant-friendly version of Marshall Jr.’s

testimony. At worst, it effectively stamped the

government-friendly version of Marshall Jr.’s testimony

with the seal of judicial imprimatur. In this vein, the last

statement from the court’s suppression-hearing com-

ments—indicating the court’s belief that Marshall Jr. was

not credible “because he knew that his answers that he

was giving were not the same answers that he had given to the

grand jury in April” (Trial Tr. 223) (emphasis added)—is

particularly damning, because it seemingly endorses the

government-friendly version of Marshall Jr.’s testimony.

34 No. 07-2780

Thus, in allowing his suppression-hearing comments to

come in before the jury, the trial judge placed not just a

thumb, but a very heavy fist, on the scales of justice,

tipping the balance firmly in the government’s favor. Cf.

United States v. Verser, 916 F.2d 1268, 1272-73 (7th Cir. 1990)

(“Fundamental to the right to a fair trial” is the court’s

obligation to avoid “giv[ing] the impression to the jury

that the judge believes one version of the evidence and

disbelieves or doubts another.” (quotation omitted)).

And Marshall Jr. was not just a key government witness,

but, at least with respect to the firearms charge, the star;

his testimony was crucial to establishing Blanchard’s

control over the porch firearms. Although the handgun

seized from Blanchard’s bedroom might provide an

independent basis to sustain the firearms conviction

for sufficiency-of-the-evidence purposes, see United

States v. Alanis, 265 F.3d 576, 592 (7th Cir. 2001) (finding

recovery of gun from defendant’s bedroom constituted

sufficient evidence of constructive possession), the gov-

ernment focused its efforts at trial on the porch firearms.

Marshall Jr.’s testimony regarding his father’s ownership,

control of, and access to those firearms was the lynchpin

of the government’s case. And although Marshall Jr.’s

testimony was somewhat less important with respect to

the methamphetamine manufacturing charge, it was

nonetheless significant. Without his testimony, the gov-

ernment’s case would have rested even more heavily on

Blanding, a witness whose credibility was somewhat

compromised by the jury’s knowledge that she was a

past methamphetamine user who had entered into an

immunity agreement with the government. Blanding’s

account of the manufacturing arrangement—that

No. 07-2780 35

Blanchard facilitated and participated in the manu-

facture of methamphetamine in exchange for a share of

the product—was bolstered by Marshall Jr.’s testimony

regarding his father’s behavioral and physical changes;

those changes supported an inference of the sort of

regular methamphetamine use that might motivate one

to encourage and participate in manufacture at his own

residence. Thus, the prejudicial effect of the court’s argu-

able endorsement of Marshall Jr.’s grand jury testimony

cannot be neatly confined to the felon-in-possession charge.

The government’s emphasis on Marshall Jr.’s testimony

at trial confirms his importance to the government’s

overall case. He was not only the first witness called by

the government at trial, but also a point of emphasis in

closing argument, where the prosecutor stated: “Finally

and most importantly, you have to consider the testi-

mony of the defendant’s own son. . . . There can be no

more compelling evidence in this case than the testimony

of Marshall Jr., the agony that was vivid from his testi-

mony.” (Trial Tr. 871, 873.) The prosecutor reminded

the jury that Marshall Jr. had testified unfavorably to his

father before the grand jury with respect to both the

drug manufacturing and felon-in-possession charges

before changing his testimony at the November 15 hear-

ing. Then, the prosecutor delivered a final reminder of the

trial judge’s suppression-hearing comments: “On Novem-

ber 15th of last year, Marshall Jr. comes into this courtroom

before [the trial judge] and lies under oath for his dad. . . .

And it wasn’t the government who suggested—who first

suggested that he wasn’t telling the truth. You heard what

happened during that hearing.” (Trial Tr. 872) (emphasis

added). This comment provided one last, potentially

36 No. 07-2780

devastating reminder that the trial judge had effectively

endorsed the grand-jury, government-friendly version of

Marshall Jr.’s testimony.

And finally, the court did not instruct the jury in a

manner sufficient to remedy the potential prejudice.

First, the court failed to provide a timely limiting instruc-

tion (or any at all, for that matter) directing the jury to

consider the court’s suppression-hearing comments only

for the purpose of establishing who first challenged

Marshall Jr.’s truthfulness.4 See Nickl, 427 F.3d at 1295

(finding Rule 605 violation was not harmless partly

because “the judge offered no specific curative instruc-

tion which could have overcome his error”); cf. Curry,

No. 07-2455, slip op. at 16-17 (where trial judge’s explana-

tion of the concept of hearsay might have been inter-

preted as impugning the credibility of the defendant,

immediate and lengthy curative instruction helped to

avoid reversible error, although it was noted to be a “close

call”). Where the court’s comments were introduced only

4

The trial judge’s failure to provide a timely limiting instruc-

tion is particularly puzzling in light of his decision to promptly

“complete the record” at the next break in the proceedings.

Outside the presence of the jury, he explained that he had

permitted the introduction of his suppression-hearing comments

solely for the limited purpose of establishing who first chal-

lenged Marshall Jr.’s truthfulness at the November 15 hearing.

If the limited purpose of this evidence was of such importance

that it required a detailed explanation in the record, then

surely it was significant enough to merit a timely limiting

instruction to the jury.

No. 07-2780 37

for this limited purpose, rather than the broader purpose

of sharing the court’s credibility evaluation of a crucial

government witness, such an instruction may have been

helpful in alleviating the potential prejudice. Cf. United

States v. Simpson, 479 F.3d 492, 500 (7th Cir. 2007) (discuss-

ing failure to provide limiting instruction in analogous

Rule 404(b) context). In the final jury instructions, the

court did offer the following generic instructions:

Nothing I say now and nothing I said or did during

the trial is meant to indicate any opinion on my

part about what the facts are or about what your

verdict should be. The evidence consists of the

testimony of the witnesses, the exhibits admitted

in evidence, and a stipulation.

See Seventh Circuit Pattern Criminal Jury Instructions 1.01,

1.02 (1999). In the unusual context presented here, we

find these instructions insufficient to remedy the

potential prejudice. First, although we ordinarily presume

that jurors follow instructions, see Ross, 510 F.3d at 711, it

is impossible to say—particularly in light of the trial

judge’s characterization of his comments as “judicial

testim ony”— w hether a layperson juror w ou ld

interpret these instructions as a command to disregard

the so-called “judicial testimony” or an invitation to treat

it as evidence. Second, even if the trial judge had not

characterized his comments as “judicial testimony,” it is

doubtful that these generic instructions would have

been sufficient, because they were “neither prompt,

specific, nor emphatic.” Nickl, 427 F.3d at 1295 (finding

similar generic instruction insufficient to cure prejudice

38 No. 07-2780

caused by Rule 605 violation); see also Quercia, 289 U.S. at

472 (“Nor do we think that the error was cured by the

statement of the trial judge that his opinion of the evi-

dence was not binding on the jury . . . . His definite and

concrete assertion of fact, which he had made with all the

persuasiveness of judicial utterance . . . was not with-

drawn.”).

In short, we conclude that the trial judge abused his

discretion by allowing the introduction of his own

suppression-hearing comments on the credibility of a key

government witness, and this error was not harmless. In

light of this conclusion, we need not reach the question

of whether this error constituted judicial bias or pros-

ecutorial misconduct. However, this case sounds a cau-

tionary note for district court judges, who must remain

alert to the potential impact of their comments on juries

and the consequent need to avoid the appearance of

partiality to either side. See McCray, 437 F.3d at 643;

United States v. Washington, 417 F.3d 780, 784 (7th Cir.

2005).

D. Sufficiency of the Evidence

Before concluding, we briefly address Blanchard’s

sufficiency-of-the-evidence challenge to both convic-

tions.5 In challenging the sufficiency of the evidence,

5

In light of our conclusion regarding the improper introduc-

tion of the court’s suppression-hearing comments, this might

(continued...)

No. 07-2780 39

Blanchard faces a “daunting task.” United States v.

Wortman, 488 F.3d 752, 754 (7th Cir. 2007) (citation omit-

ted). On review of such a challenge, we view the evidence

and all reasonable inferences derived therefrom in the

light most favorable to the government, defer to the

jury’s credibility determinations, and overturn a verdict

“only when the record contains no evidence, regardless

of how it is weighed, from which the jury could find guilt

beyond a reasonable doubt.” United States v. Duran, 407

F.3d 828, 839 (7th Cir. 2005) (quoting United States v.

Jackson, 177 F.3d 628, 630 (7th Cir. 1999)); see also United

States v. Wantuch, 525 F.3d 505, 519 (7th Cir. 2008). In other

words, we will reverse “only if the fact finder’s take on

the evidence was wholly irrational.” United States v.

Bustamante, 493 F.3d 879, 884 (7th Cir. 2007) (internal

quotation omitted).

Under this exceedingly deferential standard of review,

we conclude that the district court did not err in denying

Blanchard’s Rule 29 sufficiency-of-the-evidence motion.

Blanding’s testimony, coupled with the methamphetamine-

related evidence recovered from both Blanchard’s resi-

dences, provided evidence in support of Count One. And

Marshall Jr.’s testimony, coupled with the seizure of the

firearms from Blanchard’s Roberts residence, provided

evidence of constructive possession of the porch fire-

5

(...continued)

appear unnecessary. However, if Blanchard prevailed on this

challenge, he would be entitled to a judgment of acquittal, and

therefore, we find it appropriate to address his argument.

40 No. 07-2780

arms, in support of Count Two. See United States v. Thomas,

321 F.3d 627, 636 (7th Cir. 2003) (constructive possession

exists where one has “the power and the intention at

a given time to exercise dominion and control over an

object, either directly or through others” (quotation

omitted)); Bustamante, 493 F.3d at 889 (explaining that the

government “can prove constructive possession of a gun

by showing that police recovered the gun at the defen-

dant’s residence” (citing United States v. Kitchen, 57 F.3d

516, 521 (7th Cir. 1995)). In sum, this evidence provided

a sufficient, rational basis for the case to go to the jury

for deliberation; indeed, absent the strange and unusual

events described in the foregoing section, Blanchard’s

convictions would be affirmed. However, that the jury’s

decision may have been rational does not mean that it

was inevitable, and because we are troubled that the

introduction of the trial judge’s suppression-hearing

commentary may have influenced the outcome of the trial,

Blanchard’s convictions cannot stand.6

6

We briefly address two additional arguments that were

included, almost as an afterthought, at the close of the Appel-

lant’s brief. Blanchard argues that his civil and possessory rights

have been fully restored under Illinois law, precluding his

conviction under 18 U.S.C. § 922(g)(1), but acknowledges that

his argument is foreclosed by our decision in Melvin v. United

States, 78 F.3d 327 (7th Cir. 1996). He also contends (without

explanation or citation to authority) that § 922(g)(1) exceeds the

scope of Congress’s power under the Commerce Clause. But

“movement in interstate commerce is all the Supreme Court

(continued...)

No. 07-2780 41

III. Conclusion

For the foregoing reasons, we V ACATE the Defendant’s

convictions and R EMAND for a new trial. Circuit Rule 36

shall apply on remand.

6

(...continued)

requires under the statute,” United States v. Jackson, 479 F.3d 485,

492 (7th Cir. 2007) (citing Scarborough v. United States, 431 U.S.

563 (1977)), and Blanchard does not dispute the evidence of

interstate movement of the firearms presented at trial. Blanchard

indicates that he has raised these arguments in order to

preserve them in the event of a change in the law, and we

reciprocate his perfunctory development of these arguments

with our rejection of them here.

9-8-08